Report 2021-105 Recommendation 50 Responses

Report 2021-105: Law Enforcement Departments Have Not Adequately Guarded Against Biased Conduct (Release Date: April 2022)

Recommendation #50 To: San Jose Police Department

To ensure that it adequately investigates possible biased conduct and implements effective corrective actions, San José Police should ensure it has implemented policies or procedures by January 2023 that require that the investigations apply a definition of bias that incorporates the following: biased conduct can include conduct resulting from implicit as well as explicit biases; conduct is biased if a reasonable person would conclude so using the facts at hand; an officer need not admit biased or prejudiced intent for conduct to reasonably appear biased; and biased conduct may occur in an encounter with the public, with other officers, or online, such as conduct on social media.

Annual Follow-Up Agency Response From September 2023

Pursuant to the State Auditor's recommendation to the California Commission on Peace Officer Standards and Training (POST), the Department will adopt POST's explanations of implicit and explicit bias, including how they can influence behavior and will mirror them in internal policies. In addition, the Department will develop a policy clarifying that biased conduct may occur in an encounter with the public, with other officers, or online, such as conduct on social media. The expected completion date for this recommendation is unable to be determined at this time, as it is reliant on POST's development of the applicable definitions. These types of investigations are reported to POST and POST reviews them. The Department also sent out a Memorandum/Duty Manual Revision department wide addressing online presence conduct.

California State Auditor's Assessment of Annual Follow-Up Status: Pending

To clarify, we specifically recommended that the Legislature, not POST, create a definition of biased conduct for law enforcement departments to use in their misconduct investigations. We also made a similar recommendation directly to San Jose Police Department. A recently adopted state law now requires POST to develop a definition of biased conduct.

1-Year Agency Response

Pursuant to the State Auditor's recommendation to the California Commission on Peace Officer Standards and Training (POST), the Department will adopt POST's explanations of implicit and explicit bias, including how they can influence behavior and will mirror them in internal policies. In addition, the Department will develop a policy clarifying that biased conduct may occur in an encounter with the public, with other officers, or online, such as conduct on social media. The expected completion date for this recommendation is unable to be determined at this time, as it is reliant on POST's development of the applicable definitions.

California State Auditor's Assessment of 1-Year Status: Pending

It was specifically recommended that the Legislature, not POST, create a definition of biased conduct for law enforcement departments to use in their misconduct investigations. We also made a similar recommendation directly to San Jose Police Department. San Jose Police may choose to implement the Legislature's definition of bias if and when it develops such a definition. However, given the importance of officers exercising their duties with fairness and impartiality, and the benefit of clarity regarding what constitutes biased conduct by a peace officer, San Jose Police should not wait for the Legislature to implement our recommendation.

6-Month Agency Response

Pursuant to the State Auditor's recommendation to the California Commission on Peace Officer Standards and Training (POST), the Department will adopt POST's explanations of implicit and explicit bias, including how they can influence behavior and will mirror them in internal policies. In addition, the Department will develop a policy clarifying that biased conduct may occur in an encounter with the public, with other officers, or online, such as conduct on social media. The expected completion date for this recommendation is unable to be determined at this time, as it is reliant on POST's development of the applicable definitions.

California State Auditor's Assessment of 6-Month Status: Pending

The San Jose Police Department continues to misunderstand the intended subject of our recommendations related to developing a definition of bias. Specifically, we recommended that the Legislature, not POST, create a definition of biased conduct for law enforcement departments to use in their misconduct investigations. Nonetheless, we also made a similar recommendation directly to San Jose Police. Although the San Jose Police Department may choose to implement the Legislature's definition of bias if and when it develops such a definition, given the importance of officers exercising their duties with fairness and impartiality, and the benefit of clarity regarding what constitutes biased conduct by a peace officer, San Jose Police should not wait for the Legislature to implement our recommendation.

60-Day Agency Response

Pursuant to the State Auditor's recommendation to the California Commission on Peace Officer Standards and Training (POST), the Department will adopt POST's explanations of implicit and explicit bias, including how they can influence behavior and will mirror them in internal policies. In addition, the Department will develop a policy clarifying that biased conduct may occur in an encounter with the public, with other officers, or online, such as conduct on social media. The expected completion date for this recommendation is unable to be determined at this time, as it is reliant on POST's development of the applicable definitions.

California State Auditor's Assessment of 60-Day Status: Pending

San Jose Police misunderstands the intended subject of our recommendations related to developing a definition of bias. Specifically, we recommended that the Legislature, not POST, create a definition of biased conduct for law enforcement departments to use in their misconduct investigations. Nonetheless, we also made a similar recommendation directly to San Jose Police. Although San Jose Police may choose to implement the Legislature's definition of bias if and when it develops such a definition, given the importance of officers exercising their duties with fairness and impartiality, and the benefit of clarity regarding what constitutes biased conduct by a peace officer, San Jose Police should not wait for the Legislature to implement our recommendation.

All Recommendations in 2021-105

Agency responses received are posted verbatim.